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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EDWIN COLON-RODRIGUEZ
Appellant No. 1475 MDA 2015
Appeal from the Judgment of Sentence July 27, 2015
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0004468-2014;
CP-06-CR-0004472-2014; CP-06-CR-0004473-2014;
CP-06-CR-0004477-2014; CP-06-CR-0004478-2014
BEFORE: GANTMAN, P.J., BOWES, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 13, 2016
Appellant, Edwin Colon-Rodriguez, appeals from the judgment of
sentence entered in the Berks County Court of Common Pleas, following his
open guilty plea to six counts of delivery of a controlled substance and two
counts of conspiracy.1 We affirm and grant counsel’s petition to withdraw.
The relevant facts and procedural history of this case are as follows.
Appellant sold drugs to an undercover police officer on July 17, 2013,
December 12, 2013, December 19, 2013, January 22, 2014, and February 4,
2014. Police arrested Appellant for the five drug transactions, and the
Commonwealth charged him with various drug-related crimes at five
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1
35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. § 903(a)(1), respectively.
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separate dockets. Specifically, the Commonwealth charged Appellant with
the following offenses: at docket # CP-06-CR-0004478-2014, delivery of a
controlled substance, possession with intent to deliver a controlled substance
(“PWID”), and possession of a controlled substance, in connection with the
July 17, 2013 drug transaction; at docket # CP-06-CR-0004468-2014,
delivery of a controlled substance, PWID, and possession of a controlled
substance, in connection with the December 12, 2013 drug transaction; at
docket # CP-06-CR-0004472-2014, one count each of delivery of a
controlled substance, PWID, and possession of a controlled substance, and
three counts of conspiracy, in connection with the December 19, 2013 drug
transaction; at docket # CP-06-CR-0004477-2014, two counts each of
delivery of a controlled substance, PWID, and possession of a controlled
substance, and six counts of conspiracy, in connection with the January 22,
2014 drug transaction; and at docket # CP-06-CR-0004473-2014, delivery
of a controlled substance, PWID, and possession of a controlled substance,
in connection with the February 4, 2014 drug transaction.
On July 27, 2015, Appellant entered an open guilty plea to six counts
of delivery of a controlled substance and two counts of conspiracy, in
exchange for the Commonwealth’s request that the court dismiss the
remaining charges against Appellant. With the benefit of a pre-sentence
(“PSI”) report, the court immediately sentenced Appellant to an aggregate
term of eight (8) to twenty (20) years’ imprisonment. The court imposed
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some of the sentences for Appellant’s convictions consecutively. At
Appellant’s sentencing hearing, trial counsel objected to the court’s use of
Appellant’s prior PWID conviction to increase his prior record score because
the prior PWID conviction also subjected Appellant to a discretionary
sentencing enhancement under 35 P.S. § 780-115(a). The court overruled
trial counsel’s objection. The court, however, did not invoke the
discretionary sentencing enhancement and used Appellant’s prior PWID
conviction only in the calculation of Appellant’s prior record score. The
sentence imposed was substantially less than the statutory maximum
without consideration of the discretionary sentencing enhancement.
On July 28, 2015, Appellant filed a post-sentence motion in which he
complained the court improperly double counted his prior PWID conviction
when it imposed his sentence. The court denied the motion on July 29,
2015. On August 19, 2015, trial counsel filed a petition to withdraw, which
the court granted on August 20, 2015. When the court granted trial
counsel’s petition to withdraw, the court appointed new counsel to represent
Appellant on direct appeal. Appellate counsel timely filed a notice of appeal
on August 27, 2015. On September 4, 2015, the court ordered Appellant to
file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b), and Appellant timely complied on September 24, 2015.
On December 21, 2015, appellate counsel filed a petition for leave to
withdraw and Anders brief with this Court.
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As a preliminary matter, counsel seeks to withdraw her representation
pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d
493 (1967) and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349
(2009). Anders and Santiago require counsel to: 1) petition the Court for
leave to withdraw, certifying that after a thorough review of the record,
counsel has concluded the issues to be raised are wholly frivolous; 2) file a
brief referring to anything in the record that might arguably support the
appeal; and 3) furnish a copy of the brief to the appellant and advise him of
his right to obtain new counsel or file a pro se brief to raise any additional
points the appellant deems worthy of review. Santiago, supra at 173-79,
978 A.2d at 358-61. Substantial compliance with these requirements is
sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super.
2007).
In Santiago, supra, our Supreme Court addressed the briefing
requirements where court-appointed appellate counsel seeks to withdraw
representation:
Neither Anders nor McClendon2 requires that counsel’s
brief provide an argument of any sort, let alone the type of
argument that counsel develops in a merits brief. To
repeat, what the brief must provide under Anders are
references to anything in the record that might arguably
support the appeal.
* * *
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2
Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).
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Under Anders, the right to counsel is vindicated by
counsel’s examination and assessment of the record and
counsel’s references to anything in the record that
arguably supports the appeal.
Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:
[I]n the Anders brief that accompanies court-appointed
counsel’s petition to withdraw, counsel must: (1) provide a
summary of the procedural history and facts, with citations
to the record; (2) refer to anything in the record that
counsel believes arguably supports the appeal; (3) set
forth counsel’s conclusion that the appeal is frivolous; and
(4) state counsel’s reasons for concluding that the appeal
is frivolous. Counsel should articulate the relevant facts of
record, controlling case law, and/or statutes on point that
have led to the conclusion that the appeal is frivolous.
Id. at 178-79, 978 A.2d at 361.
Instantly, appellate counsel filed a petition to withdraw. The petition
states counsel conducted a conscientious review of the record and
determined the appeal is wholly frivolous. Counsel also supplied Appellant
with a copy of the brief and a letter explaining Appellant’s right to retain new
counsel or to proceed pro se to raise any additional issues Appellant deems
worthy of this Court’s attention. (See Letter to Appellant, dated 12/21/16,
attached to Petition for Leave to Withdraw as Counsel.) In the Anders brief,
counsel provides a summary of the facts and procedural history of the case.
Counsel’s argument refers to relevant law that might arguably support
Appellant’s issues. Counsel further states the reasons for her conclusion
that the appeal is wholly frivolous. Therefore, counsel has substantially
complied with the requirements of Anders and Santiago.
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Counsel raises the following issue on Appellant’s behalf:
WHETHER THE SENTENCING COURT ABUSED ITS
DISCRETION WHEN IT IMPOSED AN EXCESSIVE
SENTENCE THAT IMPROPERLY DOUBLE COUNTED A PRIOR
CONVICTION UNDER 35 [P.S.] § 780-113(A)(30), WHERE:
FIRST, THE SENTENCING COURT ERRONEOUSLY
UTILIZED [APPELLANT’S] PRIOR CONVICTION
UNDER 35 [P.S.] § 780-113(A)(30) TO INCREASE
HIS PRIOR RECORD SCORE TO FIVE (5), WITHOUT
THAT INCLUSION, [APPELLANT’S] PRIOR RECORD
SCORE WOULD BE A THREE (3) PURSUANT TO THE
SENTENCING GUIDELINES.
SECOND, THE SENTENCING COURT UTILIZED
[APPELLANT’S] PRIOR CONVICTION UNDER 35 [P.S.]
§ 780-113(A)(30) TO IMPOSE A SENTENCING
ENHANCEMENT UNDER 35 P.S. § 780-115(A) THAT
INCREASED THE MAXIMUM PENALTY, CONSIDERING
THE PRIOR CONVICTION AS AN ELEMENT OF THE
CURRENT OFFENSES.
(Anders Brief at 12).
Appellant argues the court improperly double counted his prior PWID
conviction under 35 P.S. § 780-113(a)(30), when it imposed Appellant’s
sentence. Appellant asserts the court first used his prior PWID conviction to
increase his prior record score to five, which increased the sentencing
guideline ranges for Appellant’s convictions. Appellant also avers the court
used his prior PWID conviction to impose a discretionary sentencing
enhancement under 35 P.S. § 780-115(a), which doubled the statutory
maximum sentence for each of Appellant’s delivery of a controlled substance
convictions. Appellant further complains the court considered Appellant’s
prior PWID conviction again when it chose to impose some of Appellant’s
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sentences consecutively. Appellant concludes the court’s erroneous
consideration of his prior PWID conviction multiple times at sentencing made
his sentence excessive, and we should vacate and remand for resentencing.
As presented, Appellant challenges the discretionary aspects of his
sentence.3 See Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super. 2002)
(stating claim that sentence is manifestly excessive challenges discretionary
aspects of sentencing).
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d
910, 912 (Pa.Super. 2000). Prior to reaching the merits of a discretionary
aspects of sentencing issue:
[W]e conduct a four-part analysis to determine: (1)
whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and
modify sentence, see [Pa.R.Crim.P. 720]; (3) whether
appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial question that the
sentence appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A. § 9781(b).
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3
“[W]hile a guilty plea which includes sentence negotiation ordinarily
precludes a defendant from contesting the validity of his...sentence other
than to argue that the sentence is illegal or that the sentencing court did not
have jurisdiction, open plea agreements are an exception in which a
defendant will not be precluded from appealing the discretionary aspects of
the sentence.” Commonwealth v. Tirado, 870 A.2d 362, 365 n.5
(Pa.Super. 2005) (emphasis in original). “An ‘open’ plea agreement is one
in which there is no negotiated sentence.” Id. at 363 n.1. Here, Appellant’s
guilty plea included no negotiated sentence.
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Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006). Objections to the discretionary
aspects of sentence are generally waived if they are not raised at the
sentencing hearing or raised in a motion to modify the sentence imposed at
that hearing. Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.Super.
2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).
When appealing the discretionary aspects of a sentence, an appellant
must invoke the appellate court’s jurisdiction by including in his brief a
separate concise statement demonstrating that there is a substantial
question as to the appropriateness of the sentence under the Sentencing
Code. Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002);
Pa.R.A.P. 2119(f). “The requirement that an appellant separately set forth
the reasons relied upon for allowance of appeal furthers the purpose evident
in the Sentencing Code as a whole of limiting any challenges to the trial
court’s evaluation of the multitude of factors impinging on the sentencing
decision to exceptional cases.” Commonwealth v. Phillips, 946 A.2d 103,
112 (Pa.Super. 2008), appeal denied, 600 Pa. 745, 964 A.2d 895 (2009),
cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174 L.Ed.2d 240 (2009).
The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. Commonwealth v. Anderson, 830
A.2d 1013 (Pa.Super. 2003). A substantial question exists “only when the
appellant advances a colorable argument that the sentencing judge’s actions
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were either: (1) inconsistent with a specific provision of the Sentencing
Code; or (2) contrary to the fundamental norms which underlie the
sentencing process.” Sierra, supra at 913. A claim of excessiveness can
raise a substantial question as to the appropriateness of a sentence under
the Sentencing Code, even if the sentence is within the statutory limits.
Mouzon, supra at 430, 812 A.2d at 624. Importantly, a claim that the
court double-counted a defendant’s prior record raises a substantial
question. Commonwealth v. Goggins, 748 A.2d 721, 732 (Pa.Super.
2000) (en banc), appeal denied, 563 Pa. 672, 759 A.2d 920 (2000).
Additionally:
Pennsylvania law affords the sentencing court discretion to
impose [a] sentence concurrently or consecutively to other
sentences being imposed at the same time or to sentences
already imposed. Any challenge to the exercise of this
discretion does not raise a substantial question. In fact,
this Court has recognized the imposition of consecutive,
rather than concurrent, sentences may raise a substantial
question in only the most extreme circumstances, such as
where the aggregate sentence is unduly harsh, considering
the nature of the crimes and the length of imprisonment.
Commonwealth v. Austin. 66 A.3d 798, 808 (Pa.Super. 2013), appeal
denied, 621 Pa. 692, 77 A.3d 1258 (2013) (internal citations and quotation
marks omitted).
Here, Appellant properly preserved his discretionary aspects of
sentencing claim in his post-sentence motion and Rule 2119(f) statement;
and his claim that the court double counted his prior PWID conviction
appears to raise a substantial question as to the discretionary aspect of his
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sentence. See Goggins, supra.
Our standard of review of a challenge to the discretionary aspects of
sentencing is as follows:
Sentencing is a matter vested in the sound discretion of
the sentencing judge, and a sentence will not be disturbed
on appeal absent a manifest abuse of discretion. In this
context, an abuse of discretion is not shown merely by an
error in judgment. Rather, the appellant must establish,
by reference to the record, that the sentencing court
ignored or misapplied the law, exercised its judgment for
reasons of partiality, prejudice, bias or ill will, or arrived at
a manifestly unreasonable decision.
Commonwealth v. Hyland, 875 A.2d 1175, 1184 (Pa.Super. 2005), appeal
denied, 586 Pa. 723, 890 A.2d 1057 (2005) (quoting Commonwealth v.
Rodda, 723 A.2d 212, 214 (Pa.Super. 1999) (en banc)).
Pursuant to Section 9721(b), “the court shall follow the general
principle that the sentence imposed should call for confinement that is
consistent with the protection of the public, the gravity of the offense as it
relates to the impact on the life of the victim and on the community, and the
rehabilitative needs of the defendant.” 42 Pa.C.S.A. § 9721(b). “[T]he
court shall make as part of the record, and disclose in open court at the time
of sentencing, a statement of the reason or reasons for the sentence
imposed.” Id. Nevertheless, “[a] sentencing court need not undertake a
lengthy discourse for its reasons for imposing a sentence or specifically
reference the statute in question….” Commonwealth v. Crump, 995 A.2d
1280, 1283 (Pa.Super. 2010), appeal denied, 608 Pa. 661, 13 A.3d 475
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(2010). Rather, the record as a whole must reflect the sentencing court’s
consideration of the facts of the case and the defendant’s character. Id. “In
particular, the court should refer to the defendant’s prior criminal record, his
age, personal characteristics and his potential for rehabilitation.”
Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa.Super. 2002), appeal
denied, 582 Pa. 671, 868 A.2d 1198 (2005), cert denied, 545 U.S. 1148,
125 S.Ct. 2984, 162 L.Ed.2d 902 (2005). As a general rule, “a sentencing
court may not ‘double count’ factors already taken into account in the
sentencing guidelines.” Goggins, supra at 732. Nevertheless, “courts are
permitted to use prior conviction history and other factors included in the
guidelines if, they are used to supplement other extraneous sentencing
information.” Commonwealth v. Shugars, 895 A.2d 1270, 1275
(Pa.Super. 2006).
Instantly, the record belies Appellant’s contentions. At sentencing, the
court determined Appellant’s prior record score was five based partially on
Appellant’s prior PWID conviction. The court then proceeded to sentence
Appellant to an aggregate term of eight (8) to twenty (20) years’
imprisonment. Significantly, Appellant’s sentence at each count was within
the recommended sentencing guidelines and well below the statutory
maximum penalty without consideration of the discretionary sentencing
enhancement under 35 P.S. § 780-115(a). Thus, the record demonstrates
the court considered Appellant’s prior PWID conviction once to calculate
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Appellant’s prior record score.
Additionally, there is no merit to Appellant’s claim that the court
improperly considered Appellant’s prior PWID conviction when the court
imposed some of Appellant’s sentences consecutively. The court had the
benefit of a PSI report at sentencing. Therefore, we can presume it
considered the relevant factors when it sentenced Appellant. See Tirado,
supra at 368 (holding where sentencing court had benefit of PSI, law
presumes court was aware of and weighed relevant information regarding
defendant’s character and mitigating factors). The court also stated on the
record that it considered the information in the PSI report, the fact that
Appellant pled guilty, the sentencing guidelines, Appellant’s prior record,
Appellant’s statement at sentencing, and trial counsel’s statement at
sentencing, when it imposed Appellant’s sentences. The court further
indicated it imposed some of Appellant’s sentences consecutively to hold
Appellant accountable for his actions and to provide Appellant access to the
drug and alcohol treatment programs in prison. Thus, the court relied on
many factors other than Appellant’s prior PWID conviction when it imposed
some of Appellant’s sentences consecutively.
Therefore, the court did not erroneously consider Appellant’s prior
PWID conviction multiple times at sentencing, and Appellant’s claim that the
court double counted his prior PWID conviction merits no relief. See
Shugars, supra. Accordingly, we affirm the judgment of sentence and
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grant counsel’s petition to withdraw.
Judgment of sentence affirmed; counsel’s petition to withdraw
granted.
Judge Musmanno joins this memorandum.
Judge Bowes files a concurring statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/13/2016
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